Religious Equality: Restoring Section 15's Hollowed Ground
91 Supreme Court Law Review (2d), 2019
36 Pages Posted: 9 Jan 2020
Date Written: June 7, 2019
The Canadian Charter of Rights and Freedoms guarantees the right to equal protection and benefit of the law without discrimination based on one’s religion. This guarantee of religious equality is distinct from the Charter’s other protections for religion, including freedom of religion enshrined in section 2(a). Yet it has been given little elucidation as a stand-alone protection and has often been overlooked, notwithstanding the extensive scholarship and jurisprudence on section 15 generally. In the litigation context, religious equality claims are often simply subsumed into a section 2(a) analysis, or completely disregarded.
This paper explains why a “revitalization” of section 15 religious equality is warranted. The authors survey some of the reasons religious equality has been overlooked in previous cases, and why those reasons merit reconsideration. They then examine how religious equality is different in form and substance from religious freedom, and why, as a matter of constitutional doctrine, it ought to be afforded a more distinct and robust role in Canadian jurisprudence. Finally, they review some of the challenges that equality-seeking religious claimants have faced thus far and offer suggestions on how those challenges might be addressed moving forward.
The authors conclude that reclaiming religious equality’s distinct constitutional importance is imperative to maintaining a consistent, liberal and purposive understanding of the Charter’s rights and freedoms, with the full benefit of those protections afforded to all rights-holders, religious and non-religious alike.
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